Electoral Reform and Stare Decicis

I’m sorry that I haven’t been updating this site. Number one reason is that the Bersih 2.0 Rally that I took part in on 09 July 2011 left me very much shaken. I started questioning many things that our nation once took for granted. Never mind the gross constitutional improprieties of trampling down on citizens’ rights to association and freedom to take part in peaceful assemblies. Never mind all the lies that the media continues to spew out before the event and in the aftermath. Even the most basic “kesopanan dan kesusilaan” that has been such a bedrock of our country’s central tenet was violated when we were rounded up and trapped in the grounds of Tung Shin Hospital and tear gas cannisters were fired into the area itself.

We saw with our own eyes the aggressive nature of a police force “just following orders” to quash the voice of peaceful Malaysians who dared to stand up and plead for electoral reform. Electoral reform is an ongoing process even in mature democracies. Here, it is looked upon as challenging the UMNO-led hegemony that has held the nation in its grips since the 1950s. It is further painted as treasonous acts that threatened racial or religious harmony and even the sovereignty of the Crown (with some overzealous racial-zealots crying out for blood).

Up to this very minute, I am still proud to be a politically neutral Malaysian who is not a member of any political party. Partisan politics is more often self-centered and self-directed. They bring out the worst in human associations and even idealistic young men and women often find themselves getting sucked in so deep by party-loyalties that the abandon the original ideals that drove them into the public arena in the first place. It is true that I have taken part in more than one DAP fundraiser but, like I tell my cousin, I’m more often there for the amusement (and the food, let’s not forget that!) than anything else. Bersih 2.0 was a cause I supported because of its non-partisanship (something that the local spin-doctors try every hour to deny, twist and discredit). I guess, to a very large extent, I was there because of solidarity. I shared the struggles of people like Datuk Ambiga, Dr Subramaniam,  and our national laureate, A Samad Said (with whom I was proud to walk and stand together on that momentous day).

Despite the political posturing (e.g. the Home Minister’s refusal to apologise for the conduct of the police and the PM’s clownish antics following the Bersih rally at the UMNO gathering), it is clear that Bersih 2.0 has struck a chord in the hearts of normal Malaysians and even in the highest corridors of power. Now, the ruling coalition is openly affirming their commitment to free and fair elections when before, the President of MCA openly expressed his incredulity at why the people wanted to march in the first place (note: the fact that he doesn’t know speaks volumes about how attuned he is to the heart-felt cries of the rakyat). For the impact that it has on the consciousness of Malaysians, Bersih 2.0 was a resounding success.

The below is a news clipping from Bernama (read the original here) on how the higher courts are now empowered to review their own previous decisions. The court system, here as in the UK, upholds the basic principle of stare decicis (i.e. Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed“) as a foundational principle to ensure the stability of judicial decisions and the predictability factor so important to how we as lawful citizens plan our affairs to be in accordance to the law of the land. Such a system is often a balancing act between the need to uphold the stability of the law and that of adapting the law to meet the needs of particular facts and the inevitable march of progress and change. With the process of expediting court hearings, the judiciary here has also decided to give greater weight to adaptability and change rather than a rock-solid immutability. This, to many, is a welcome change as very few appellants have the means to take a case all the way up to the Federal Court before a decision can be reviewed (the clearest example of a decision that has taken about a decade before it was finally overruled was that of Adorna Properties v Boonsom Boonyanit).

PUTRAJAYA (July 18, 2011): The Federal Court’s ruling that it (the Federal Court), the appellate court and the High Court are empowered to review their own decision was adopted by the Appeals Court today. In that landmark decision, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum in his written judgment dated June 15 this year held that the three superior courts were clothed with inherent power to review its own decision to prevent injustice or an abuse of court process. However, he said, the courts, in exercising its power to review its own decision must be extremely cautious and could only do so in rare and exceptional cases. Justice Malanjum was among five judges who sat on the Federal Court panel which unanimously made the ruling in a review application brought by a former policeman, Harcharan Singh, who was sentenced to death for murder. The other judges were Court of Appeal president Tan Sri Alauddin Mohd Sheriff, Federal Court judges Datuk Hashim Yusoff and Datuk Abdull Hamid Embong and Court of Appeal judge Datuk Hasan Lah. Today, the appellate court adopted this ruling when it pronounced its decision in a case involving an Iraqi businessman who was wanted by the Australian government for alleged human trafficking. It (the appellate court) departed from its own ruling in Ishak Shaari vs Public Prosecutor and KTS News Sdn Bhd vs See Hua Realty Bhd and Anor which held that the appellate court did not have the jurisdiction to review its previous decisions. Court of Appeal judge Datin Paduka Zaleha Zahari chairing a three-man panel together with Datuk Sulaiman Daud and Datuk Balia Yusof Wali said the appellate court had the power to review. However, she said Sayed Omeid @ Ibrahim Ahmed Ismael’s case did not fall under the exceptional case which warranted a review. The panel dismissed Sayed Omeid’s application to review the previous appellate court panel’s decision to remit his extradition case back to the Kuala Lumpur Sessions Court for determination of the merits of the extradition application made against him. The Home Minister issued a directive to hold extradition proceedings against Sayed Omeid, 48, after the Malaysian government received a request from the Australian government on Sept 2 last year for his extradition. The request was made according to Article 4 of the Extradition Treaty. The treaty was signed by the governments of both countries on Nov 15, 2005 and enforced on Dec 28, 2006. On May 20 this year, the Court of Appeal allowed the prosecution’s appeal to set aside a decision of the High Court which had released and ordered Sayed Omeid’s deportation. The High Court had ordered Sayed Omeid’s release and deportation to his country of origin after allowing his application to review a ruling of the Sessions Court which dismissed his preliminary objection made at the onset of his extradition proceedings on grounds of defect in the three charges of alleged human trafficking implicated against him by the Australian government. The High Court also ordered that the extradition proceedings against Sayed Omeid be discontinued. Sayed Omeid was arrested here while holding three international passports. His other names were stated as Gunes Ekrem @ Akram Ogen @ Heider Mohsen Ehoobin @ Amir Achmad Hussainy @ Hussein Jamil Rasheed @ Albulushi Hassan Ismael @ Motamed Mon Fareed Farough. He was represented by counsel Karpal Singh during today’s hearing. – Bernama

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